NP Informed Consents in Pennsylvania

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Just wondering if anyone on this site is aware of this:

"On June 20, the Supreme Court of Pennsylvania ruled in Shinal vs. Toms that only a physician can obtain informed consent based on the Medical Care Availability and Reduction of Error (MCARE) Act of 2002. The ruling also outlines that a physician cannot rely upon staff to disclose sufficient information required to obtain a patient's informed consent.

The duty to obtain a patient's informed consent is a non-delegable duty, the Court ruled, belonging solely to the physician conducting the surgery or treatment. The Court found no provisions in the MCARE Act allowing for information given by a physician's staff to satisfy the physician's burden to obtain informed consent.

Section 504 of the Medical Care Availability and Reduction of Error Act, 40 P.S. § 1303.504(a), specifically states:

A physician owes a duty to a patient to obtain Informed Consent of the patient or the patient's authorized representative prior to the conducting the following procedures:

1. Operative and invasive procedures, including the related administration of anesthesia;

2. Administering radiation or chemotherapy;

3. Administering a blood transfusion and all blood products;

4. Inserting a surgical device or appliance; and

5. Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner.

Be advised that with this ruling, the ability for PAs, NPs, mid wives and other practitioners to obtain informed consent is in serious question."

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Specializes in Family Nurse Practitioner.

What is your state's NP organization doing about this wording? My guess is the intention is "provider" must do the informed consent so I would suggest getting your lobbyist on that and push to have the regs changed. I happen to agree that the LIP should be the one obtaining consent and to the best of my knowledge the process of consent is a major area of litigation so not one we should take chances with.

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What is your state's NP organization doing about this wording? My guess is the intention is "provider" must do the informed consent so I would suggest getting your lobbyist on that and push to have the regs changed. I happen to agree that the LIP should be the one obtaining consent and to the best of my knowledge the process of consent is a major area of litigation so not one we should take chances with.

That's a good question, and one to which I can find no answer. I searched the more prominent PA nursing organization websites and there was no mention of it, so I was hoping to see if anyone else had more information - and also to raise awareness of it.

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Specializes in Family Nurse Practitioner.

It is a very interesting topic. Do you live in PA or did you just come across it? If you live there I'd advise becoming active or at least getting to know some of the key players in your state's NP organization. Whenever anything likes this comes up in my practice a quick text to a girlfriend either alerts me to what is being done or gets the ball rolling to address the issue.

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Specializes in Vascular Neurology and Neurocritical Care.

n Bulman v. Myers, 467 A.2d 1353 (Pa. Super. 1983), the Superior Court rejected the appellant's argument that the trial court erred in declining to charge the jury that "a patient cannot formulate a valid, informed consent to a surgical procedure when disclosures of the risks of surgery are made by a nurse assistant and not by the operating surgeon." Id. at 1354. The Superior Court reasoned that "the primary interest of Pennsylvania jurisprudence in regard to informed consent is that of having the patient informed of all the material facts from which he can make an intelligent choice as to his course of treatment." Id. at 1355 (quoting Sauro v. Shea, 390 A.2d 259, 262-63 (Pa. Super. 1978)). Similarly, in Foflygen v. Allegheny General Hosp., 723 A.2d 705 (Pa. Super. 1999), the Superior Court held that "the validity of a surgical patient's informed consent depends upon the pretreatment information relayed to the patient, regardless of whether the disclosures are made by the treating physician or another qualified person such as a nurse or other assistant." Id. at 707.

Long story short, after a .ore thorough review, basically whatg the court is saying is that whoever does the procedure needs to get the consent. Not that we cannot obtain informed consent for ANYTHING. I do angiograms in Pennsylvania. Because I am the performing provider, I obtain the consent, I would not need to get the physician to obtain it if I'm performing the procedure.

If you as an NP put in a central line, your abiility to get to consent is not hindered by this law.

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Specializes in Family Nurse Practitioner.

Long story short, after a .ore thorough review, basically whatg the court is saying is that whoever does the procedure needs to get the consent.

This makes perfect sense, could it be that there is something in our legal system, that I both understand and also seems reasonable? :)

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n Bulman v. Myers, 467 A.2d 1353 (Pa. Super. 1983), the Superior Court rejected the appellant's argument that the trial court erred in declining to charge the jury that "a patient cannot formulate a valid, informed consent to a surgical procedure when disclosures of the risks of surgery are made by a nurse assistant and not by the operating surgeon." Id. at 1354. The Superior Court reasoned that "the primary interest of Pennsylvania jurisprudence in regard to informed consent is that of having the patient informed of all the material facts from which he can make an intelligent choice as to his course of treatment." Id. at 1355 (quoting Sauro v. Shea, 390 A.2d 259, 262-63 (Pa. Super. 1978)). Similarly, in Foflygen v. Allegheny General Hosp., 723 A.2d 705 (Pa. Super. 1999), the Superior Court held that "the validity of a surgical patient's informed consent depends upon the pretreatment information relayed to the patient, regardless of whether the disclosures are made by the treating physician or another qualified person such as a nurse or other assistant." Id. at 707.

Long story short, after a .ore thorough review, basically whatg the court is saying is that whoever does the procedure needs to get the consent. Not that we cannot obtain informed consent for ANYTHING. I do angiograms in Pennsylvania. Because I am the performing provider, I obtain the consent, I would not need to get the physician to obtain it if I'm performing the procedure.

If you as an NP put in a central line, your abiility to get to consent is not hindered by this law.

This is the way my group has always practiced and also how we are assuming this will be interpreted. But the wording in this ruling is overly specific to physician. If a hospital system were to take this at face value it would limit NPs in the OR, ICU, ER, IR, etc. It would be ideal if they changed physician to provider. Especially as the NPs in Pennsylvania are attempting to gain (something that looks like) full practice authority.

Jules I went to those websites and sent a message through the generic "contact us" link. We'll see what I get in response.

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Specializes in Vascular Neurology and Neurocritical Care.

True, I wouldnt read too much into it. We routinely sign our names on the "physician" line on DNR forms etc.

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I got a response from one organization Essentially, "Thank you for your message ... very much aware of this situation ... working closely to keep up-to-date ... Lobbying and Public Relations ... staying very close to this ..."

So. There you have it. Nothing substantial.

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Specializes in Family Nurse Practitioner.

So. There you have it. Nothing substantial.

Do you belong to any of these organizations? If not this might be a good segway into getting involved and this is definitely a worthwhile topic. Its been my experience there are only a handful of active members and everyone else rides coattails or referees from the cheap seats.

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I am not a member of any at this time. Once I finish school I absolutely plan on becoming active in one way or another.

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Specializes in Family Nurse Practitioner.
I am not a member of any at this time. Once I finish school I absolutely plan on becoming active in one way or another.

Please consider it now. Most have excellent student discounts, heck I went to enough fancy pharmacy dinners to more than pay for my student membership. :) Seriously though its an excellent way to network and meet colleagues who might clue you in on good jobs and even become friends. If you are already keeping your finger on this pulse you'd probably enjoy the inside tract on the NP issues in your state.

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